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Nguyen, R. v
Summary of Court Opinion
Factual and Procedural Background
The Appellant seeks to appeal two convictions entered after guilty pleas: one for failing to surrender to custody contrary to section 6(1) of the Bail Act 1976 (convicted at a Crown Court on 1 December 2021) and one for production of a Class B drug (convicted at a Crown Court on 9 March 2022). Sentences imposed were four weeks' imprisonment and twelve months' imprisonment respectively. Both appeals were lodged approximately three years out of time, so the Appellant seeks substantial extensions of time and, in one case, leave to appeal. The Appellant's central contention is that he was a victim of trafficking and exploitation and that the statutory defence in section 45 of the Modern Slavery Act 2015 would, had it been pursued, quite probably have succeeded; he also contends abuse of process and breach of Article 4 ECHR in relation to the prosecutions. The Respondent provided a substantial core bundle, and the Appellant sought to adduce a witness statement dated 4 August 2025 as fresh evidence under section 23 of the Criminal Appeal Act 1968. The court considered the applications and the merits of the underlying appeals on the written materials, taking the Appellant's fresh statement at its highest but declining to hear oral evidence from him.
Legal Issues Presented
- Whether the Appellant was entitled to an extension of time (and leave where required) to bring appeals against the two convictions.
- Whether the convictions are unsafe because the Appellant was a victim of trafficking such that a defence under section 45 of the Modern Slavery Act 2015 would quite probably have succeeded.
- Whether the prosecutions amounted to an abuse of process or breached the Appellant's Article 4 ECHR rights by failing properly to investigate indicators of trafficking and re-exploitation.
- Whether the Appellant's fresh evidence should be admitted under section 23 of the Criminal Appeal Act 1968.
Arguments of the Parties
Appellant's Arguments
- The Appellant asserts he was a victim of trafficking and exploitation at the material times and that a section 45 MSA 2015 defence would likely have succeeded, rendering the guilty pleas unsafe.
- He contends his guilty plea in the first matter was equivocal and entered without proper appreciation of the statutory defence and other relevant matters.
- He argues the prosecution in the second matter was an abuse of process and that both convictions offend Article 4 ECHR.
- He seeks admission of a statement dated 4 August 2025 as fresh evidence explaining his understanding at the time of the pleas and reasons for delay in bringing appeals.
Respondent's Arguments
- The Respondent maintained that the section 45 defence was known to the Appellant in the Wolverhampton proceedings and that the decision to proceed was open on the material available to the prosecution.
- The Respondent submitted a core bundle and contended that much of the material was not "fresh" evidence; where new material was offered, the Respondent sought an opportunity to cross-examine the Appellant.
- The Respondent argued the prosecutions were not an abuse of process and did not breach Article 4, given inconsistencies in the Appellant's accounts and absence of independent evidence of compulsion at the relevant times.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Tredget [2022] EWCA Crim 108 | Identifies circumstances when, notwithstanding an admission of guilt, an appellant may submit a conviction is unsafe (e.g. equivocal plea, ignorance of a viable defence, or legal obstacle/abuse of process); focus on whether conviction is unsafe. | Cited to frame the principle that a voluntary and unequivocal guilty plea is a strong indicator of safety but does not preclude challenge in specified circumstances; applied in assessing whether the pleas here were equivocal or entered in ignorance of a viable defence. |
| R v MK [2018] EWCA Crim 667 | Where the section 45 defence is raised, it is for the Crown to disprove it to the usual criminal standard. | Applied to explain the burden if section 45 were raised and to note that the availability of the defence does not automatically determine criminal liability. |
| BTE [2022] EWCA Crim 1597 | Where reliance on section 45 is first placed on appeal following a guilty plea, the court must be satisfied that the defence 'would quite probably have succeeded'. | Applied as the test for whether the section 45 defence, advanced belatedly on appeal, could have succeeded and thus whether the guilty pleas rendered convictions unsafe. |
| R v AFU [2023] EWCA Crim 23 | Sets out principles where a guilty plea involved consideration of section 45; conviction may be unsafe if proceedings were an abuse of process; prosecuting authorities have Article 4 duties to investigate indicators of trafficking; review of prosecution corresponds to public law grounds. | Used to assess whether failure to investigate trafficking indicators or review prosecution decisions could render proceedings abusive and whether such review on appeal should be approached analogously to public law review. |
| R v AAD [2022] EWCA Crim 106, [2022] 1 Cr App R 19 | Guidance on how to resolve merits when section 45 has not been properly investigated: highly fact-sensitive, discretion as to when oral evidence is required, decision for the court. | Applied in determining whether to hear oral evidence from the Appellant and in deciding to resolve the applications on written materials, taking the Appellant's written evidence at its highest. |
Court's Reasoning and Analysis
The court began by setting out the legal framework: voluntary and unequivocal guilty pleas are strong indicators of safety but may be revisited in limited circumstances (R v Tredget). The court explained the section 45 defence and its requirements, emphasising that the defence requires a nexus between compulsion attributable to slavery/exploitation and the specific offending, and that the Crown must disprove the defence if raised (R v MK). It applied the 'would quite probably have succeeded' test for section 45 when pleaded for the first time on appeal (BTE).
The court reviewed the factual record: the Appellant's prior NRM engagement and positive Conclusive Grounds decision(s); arrests at cannabis factories; periods of apparent freedom and paid work; the Appellant's withdrawal from the NRM; the plea hearings (including the Appellant's explanations and mitigation), and sentencing remarks. The court examined inconsistencies across the Appellant's accounts to police, to the SCA, in mitigation, and in later statements.
On the proposed fresh evidence (statement dated 4 August 2025), the court accepted the Appellant's evidence at its highest for the purposes of decision-making but found the statement retrospective, unsupported by independent contemporaneous evidence, and in material respects inconsistent with the record. The court considered R v AAD in deciding not to require oral evidence and to determine the applications on written materials.
Applying the law to the Bradford (failure to surrender) matter, the court found no evidential basis that traffickers prevented attendance on 18 March 2021 or that the Appellant was subject to compulsion at that time. The plea was not equivocal, and the judge treated exploitation as mitigation rather than a finding of compulsion. The court concluded the section 45 defence and the statutory 'reasonable cause' defence under section 6(3) Bail Act 1976 would not quite probably have succeeded.
Applying the law to the Wolverhampton (production of cannabis) matter, the court acknowledged that the SCA had accepted the Appellant was a victim of modern slavery for a period including the relevant time, but found the evidential basis derived largely from the Appellant's own accounts, which were inconsistent and lacking independent corroboration. The Appellant had been advised about section 45 before pleading guilty; counsel expressed professional scepticism but did not coerce a plea. The court concluded that, on the totality of evidence, it could not be said that the section 45 defence would quite probably have succeeded.
On abuse of process and Article 4 arguments, the court accepted that indicators of trafficking required careful consideration by prosecuting authorities but found the prosecution's decision to proceed was open on the material available. The court noted that a Conclusive Grounds decision is significant but not determinative of criminal liability and that inconsistencies and lack of independent evidence were proper matters for the Crown to consider. The court found the high threshold for abuse of process was not met.
Holding and Implications
DISMISSED
Holding: The court dismissed the applications: the proposed fresh evidence was not admitted, the Appellant's merits were insufficient to justify allowing the appeals, and there was no prospect of success such as to warrant granting the substantial extensions of time sought.
Implications: The immediate consequence is that no extensions of time or leave were granted and both applications were dismissed. The court emphasised that its decision did not treat the Conclusive Grounds decisions as determinative of criminal liability and did not establish any new general precedent beyond the application of existing authorities to the facts of these cases.
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